Over the past few decades, the Supreme Court has generally recognized that state governments cannot be sued without their consent under the doctrine of sovereign immunity, and that the federal government has little power to abrogate this immunity and force states into state or federal court. But can a state be forced into another state's courts? In a case called Nevada v. Hall, the Supreme Court said "yes," and in a case called Franchise Tax Board v. Hyatt, the Supreme Court has granted certiorari to decide whether Nevada v. Hall should be overruled.

Today my friend Stephen Sachs and I filed an amicus brief on behalf of ourselves and in support of neither party. In a nutshell we argue that Hall is mostly right, partly wrong, but that this case is a bad vehicle for dealing with any of the wrong parts and the case should be dismissed -- among other reasons because the Supreme Court itself may lack jurisdiction over the appeal.

And from the brief:

Hall correctly held that States lack a constitutional immunity in sister-state courts. The Founders viewed each State as immune from such suits under the common law and the law of nations. Before the Constitution's enactment, this was plainly not a constitutional right, and nothing in the Constitution changed that. Thus, Hallproperly rejected the argument that there is a "federal rule of law implicit in the Constitution that requires all of the states to adhere to the sovereign-immunity doctrine as it prevailed when the Constitution was adopted." 440 U.S. at 418.

A plain reading of the Constitution's text reveals no affirmative guarantee of sister-state immunity. Unless otherwise specified "in the plan of the convention," The Federalist No. 81, at 549 (Alexander Hamilton) (Jacob E. Cooke ed., 1961), the Constitution takes the States' sovereign rights as it finds them. The Founders left the rules of sister-state immunity precisely as they were: as ordinary rules of common law and the law of nations, to be enforced through ordinary channels.

...

Hall went too far, however, in denying that "the Constitution places any limit on the exercise of one State's power to authorize its courts to assert jurisdiction over another State," 440 U.S. at 421 (emphasis added), and in reducing sister-state immunity to a "matter of comity," id. at 425. In particular, Hall was likely wrong to assume that a State's abrogation of immunity in its own courts could be projected outward so as to bind other state and federal courts.

Even without a direct guarantee of sister-state immunity, the Constitution may well offer substantial indirect protection rooted in the law of judgments. Whatever a State's power to prescribe rules for its own courts, it cannot force other courts to take notice of "a jurisdiction which, according to the law of nations, [the] sovereign could not confer." Rose v. Himely, 8 U.S. (4 Cranch) 241, 276–77 (1808). Early federal and state courts routinely refused full faith and credit to state judgments that exceeded the jurisdictional limits imposed by the law of nations and the common law. These same principles would provide ample protection for States today, shielding them from suit in sister-state courts without inventing a novel constitutional rule.

The Ideological Origins won the Bancroft and the Pulitzer prizes, but when I see Bernard Bailyn, we don’t talk about that book. It was, of course, brilliant, but I think of it as an artistic study for the book published seven years later, The Ordeal of Thomas Hutchinson. Ideological Origins accomplished all sorts of things—investigating under-appreciated sources, laying out the revolutionaries’ ideas, recovering the way that arguments shifted and grew—but it did not worry overly about recapturing the uncertainty of the moment. Years later, Bailyn would revisit politics and the creative imagination to emphasize that these “aspirations had no certain outcomes,” but in Ideological Origins there was a certain inevitability. Indeed, Bailyn noted that there were articulate opponents, but “the future lay not” with such men. He bluntly called them, “the losers.”

Only in The Ordeal would Bailyn focus on these losers and, in doing so, come to articulate the historian’s quest: to see “the latent limitations within which everyone involved was obliged to act; the inescapable boundaries of action; the blindness of the actors—in a word, the tragedy of the event.” Without first writing Ideological Origins, Bailyn never would have written The Ordeal. It is The Ordeal that we return repeatedly to talk about and the fundamental historical problem of how to see the past in the moment in which the actors do not know what is going to happen—which arguments will win, which will lose, and which will come to be so important that they will obscure all other possibilities.

This insistence on the reality that people in the past could not see the future animated my exploration of Madison’s Notes. In Madison’s Hand, I explained that “Madison’s Notes recorded one man’s view of the writing of a constitution in which the politics and process of drafting the document deferred comprehension of the Constitution as a unified text.” The document that emerged out of the Convention in 1787 embodied these limitations and boundaries. Indeed, I have come to believe that the very concept of The Constitution postdated the Convention. In the penultimate paragraph, I wrote “The Convention could not see the Constitution until the final days.” And, over the first decade, “the Constitution survived and indeed began to become the Constitution.” These sentences began to take the Bailyn insight in a slightly different direction. What if we see the Constitution, not as the product of winning arguments, but still caught in this moment in which multiple possibilities could enfold.

In this brief essay, I return to Bailyn’s discussion of the idea of constitution in Ideological Origins and offer some thoughts on when did the Constitution become The Constitution.

Many American scholars, lawyers, and judges born in the latter half of the twentieth century have found it difficult to comprehend, or even recognize, the Founding generation’s commitment to the law of nations as a system of law, jurisprudence, and morality. Perhaps for similar reasons, that commitment tends to get lost in much modern historical writing. So, too, with respect to a related, but, from a legal perspective, more consequential aspect of the Founding: the prominent place of the law of nations in the constitutional reform project that culminated in the Philadelphia Convention. It was the uncertain struggle to ensure that the United States complied with its (or their) treaty obligations and the law of nations that was arguably the most important, and the most consensual, reason for the drafting and ratification of the new Constitution. That imperative shaped the structure outlined in the text, as well as much of the way that judges, executive officials, and even legislators interpreted and administered the Constitution during the first generation of the federal government. The result was a government designed to interact productively with the law of nations. Some of those interpretations, and some aspects of federal administration, became enormously controversial and generated early partisan divisions. But the basic premise—that the law of nations was the law of the land—proved durable, creating a tradition of international “law- mindedness” that deserves more historical investigation than it has so far received. The result is not just a scholarly lacunae. Among many lawyers today, the Founders’ conception of the central position of the law of nations in the American legal order is even less appreciated than their cosmopolitan outlook.

In offering a corrective to this forgetfulness, Professors Anthony Bellia and Bradford Clark, in The Law of Nations and the United States Constitution, make an important contribution to the ongoing dialogue over the Founding. Nonetheless, in our view, the legal theory that Professors Bellia and Clark offer downplays, misses, or misunderstands crucial features of the pertinent history, especially why and how the Founders struggled to interweave the law of nations into the Constitution. These errors and elisions are important, in part for purely academic reasons, bearing on the extent to which their approach accurately portrays a foundational period in U.S. constitutional history. They are also important, however, because they lead Professors Bellia and Clark to reach some sound, but also some unsound, conclusions about important issues of constitutional law.

I have two thoughts on the Golove/Hulsebosh contribution that connect to some recent posts on this blog. First, their collaboration -- both on this article and on some larger projects -- shows the promise of collaborative efforts between historians and legal scholars, which are disappointingly rare. Second, it shows both the importance and limits of history in finding the Constitution's historical meaning. It's hard -- I would say impossible -- to understand the Constitution's relationship to the law of nations (what we now call customary international law) without understanding the role the law of nations played in the eighteenth century and in the founding generation's ideas about the United States' place in the world. Exploring those matters is the Golove/Hulsebosch project, and they do great work on it. But that history can only take one so far. It surely shows, as Golove and Hulsebosch say, that the founding generation and especially the Constitution's framers placed great importance on the law of nations and wanted to integrate it into their constitutional structure. The history alone, however, does not show how they integrated it into their constitutional structure. Answering that question requires close analysis of the Constitution's text (which is my project, and also Bellia and Clark's).

The power to “define and punish” offenses against “the law of nations” presumably allows Congress to restrict the movement of pirates and other violators of international law. But there is no general enumerated power giving Congress the authority to exclude migrants simply because they are foreign nationals or were born outside the United States.

It is true that the law of nations as it stood in 1789 (when the Constitution took effect) did not generally consider immigration to be an offense. However, it did generally consider immigration-without-permission to be an offense. Blackstone wrote: “Upon exactly the same reason stands the prerogative of granting safe-conducts, without which by the law of nations no member of one society has a right to intrude into another.” So, immigration without permission generally violated the law of nations. And, the U.S. Supreme Court has for centuries correctly said that the permission to immigrate can be either express or implied.

In short, immigration into the United States violates the Define and Punish Clause if it occurs without permission. And, Congress has plenty of power to grant such permission; if the immigration happens aboard a commercial vessel, then obviously the Foreign Commerce Clause empowers Congress to grant permission. Additionally, Congress can grant such permission to immigrate under its naturalization power.

Further questions remain, such as whether states have a concurrent power to license immigration. It seems clear from the Constitution’s Migration or Importation Clause that states do have concurrent power over immigration: “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.”

There are two main kinds of concurrent powers: those subject to federal preemption, and those not subject to federal preemption (like the power to tax private citizens). If states possess concurrent power to allow immigration, and if that state power is not subject to federal preemption, then that would somewhat support Professor Somin’s position. But the Migration or Importation Clause indicates that congressional power to allow immigration preempts the concurrent state power to allow immigration.

MICHAEL RAMSEY ADDS: On this point, see also Rob Natelson's similar argument, summarized here.

UPDATE [By Andrew Hyman]: As explained above, the Define and Punish Clause in my view bars immigration without permission, but that still leaves the critical question of who is empowered to give that permission: the states, Congress, the President, none of them, some of them, or all of them? Other clauses answer that question. Professor Somin’s different view of the Define and Punish Clause is elaborated in this May 2017 blog post of his.

Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the framers and ratifiers of the U.S. Constitution were the conscious heirs of Britain’s political evolution. The founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. It also produced two central features of American impeachment: the limitation of remedy to removal from office and the definition of impeachable conduct, particularly the famous phrase “high Crimes and Misdemeanors” adopted directly from British parliamentary language. Therefore, at a moment when impeachment talk is rampant, a reexamination of British impeachments is in order. This Article is the first comprehensive analysis of the entire arc of British impeachments from 1376 to 1787 since Raoul Berger’s classic 1974 study. It gives particular attention to issues raised by the current presidency. The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior customarily designated as impeachable. These embraced, but were never limited to, indictable crimes, and included: armed rebellion and other overt treasons; common crimes like murder and rape; corruption (particularly the abuse of office for self-enrichment); incompetence, neglect, or maladministration of office; and betrayal of the nation’s foreign policy interests. The last of these categories has not been emphasized in modern American scholarship, but assumes particular salience in the present moment. Finally, and crucially, the Article concludes that, although Parliament sometimes used impeachment for less dramatic ends, its one indispensable function was removal of officials whose behavior threatened the constitutional order by promoting royal/executive absolutism over representative institutions and the rule of law. Critics of the incumbent president may find this thread of British precedent both poignant and potentially useful.

Relevant to my comments yesterday, so far as I know Professor Bowman is neither a self-identified originalist nor a professionally trained historian. Yet I expect he thinks it uncontroversial to write "British impeachment practice matters to Americans because the framers and ratifiers of the U.S. Constitution were the conscious heirs of Britain’s political evolution. ... Therefore, at a moment when impeachment talk is rampant, a reexamination of British impeachments is in order." And I expect he thinks it uncontroversial and useful to undertake this impressive project. And he is, in my view, right on both points. That's not because originalism is necessarily the right approach to constitutional interpretation; it's because most theories of constitutional interpretation have some role for historical inquiry, which they assume is a useful and feasible enterprise. The debate over originalism is about how much weight to give historical conclusions such as Professor Bowman's, not whether his project is a coherent one.

09/17/2018

Two of my academic interests – one might even call them obsessions – have been Friedrich Hayek and Originalism. So, it is natural that I have long thought of writing about whether Hayek was an originalist. But now 11th Circuit Court Judge William Pryor has written an article on the closely related subject “Hayek and Textualism.” Judge Pryor’s piece is very good and I strongly recommend it.

The interesting thing about Hayek’s writings is that they contain some statements that appear to support originalism and others that oppose it. So, the answer to my question is not entirely clear. But, in the end, I conclude (with Pryor) that Hayek was an originalist of a certain sort – he favored following the Constitution’s original meaning understood not merely as the words of the Constitution, but also the principles that the enactors intended to be followed.

An example of Hayek’s support for originalism is the following statement on the American contribution to constitutionalism: Americans “regarded it as a fundamental doctrine that a ‘fixed constitution’ was essential to any free government and that a constitution meant limited government.”

But Hayek also made statements that evidenced tension with originalism: For example, he wrote that “in most instances in which judicial decisions have shocked public opinion and have run counter to general expectations, this was because the judge felt that he had to stick to the letter of the written law.” Especially the later Hayek seemed to believe that written language often could not fully capture our understanding of the workings of complex ideas and processes.

For these reasons, Hayek appeared to believe that the Constitution should be understood more broadly than the original meaning of the constitutional text. Criticizing developments in the 19th century, Hayek wrote:

gradually, as the ideal of popular sovereignty grew in influence, what the opponents of an explicit enumeration of protected rights [in the Bill of Rights] had feared happened: it became accepted doctrine that the courts are not at liberty ‘to declare an act void because in their opinion it is opposed to a spirit supposed to pervade the constitution but not expressed in words.’

As Pryor explains, Hayek here means by "spirit":

the structure of the Constitution and the traditional Anglo-American legal guarantees of individual liberty the Constitution was understood to preserve – based on what he described as its ‘design,’ ‘discussions of the period,’ and early judicial decisions.

Now, this understanding of the Constitution as including its spirit might seem nontextualist and even nonoriginalist. But Hayek defends himself by arguing that the Ninth Amendment was intended to protect these unwritten protections. He views Alexander Hamilton’s opposition to the Bill of Rights as based on the concern that “the Constitution was intended to protect a range of individual rights much wider than any document could exhaustively enumerate and that any explicit enumeration of some was likely to be interpreted to mean that the rest were not protected.”

Hayek might defend his understanding of the Constitution based on his reading of the Ninth Amendment. And he also argues that the 14th Amendment’s Privileges or Immunities Clause similarly protects unwritten rights.

If Hayek is correct about the 9th and 14th Amendments, then perhaps he could defend his understanding of the Constitution as a type of originalism. Of course, that’s a big if. Randy Barnett has a similar (but much more developed and defended) understanding of these amendments. In a future post, I hope to discuss the proper understanding of these Amendments.

At the Volokh Conspiracy, Professor Randy Barnett has a long post about Brett Kavanaugh's testimony concerning originalism (and other matters). Barnett focuses some of his remarks on the following three questions put to Kavanaugh by Senator Kennedy referring to District of Columbia v. Heller: "Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?"

These questions, of course, suggest a critique of originalism made by many legal scholars and academic historians: the study of history is and should be a rigorous discipline requiring the person doing the studying to immerse herself in the peoples, traditions, values, and events of long ago. Trying to decide what the text of a 1788 or 1868 document meant at the time is simply not an exercise judges, law clerks, and lawyers are trained to do.

Kavanaugh, not surprisingly, ducked these questions by saying that for "most ... constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation" the Heller Court did.

Barnett's response was different:

[J]udges should not be doing the historical research that originalism requires... this research should be done by constitutional scholars--inside and outside of the law schools--whose evidence and conclusions can be challenged by other scholars in advance of any litigation. Then judges can select the arguments they find most persuasive, as they do when they evaluate competing expert testimony. Indeed, in Heller both Justices Scalia and Stevens relied on outside scholarship by both historians and legal scholars for the sources they mustered in defense of their conclusions.

Professor Segall objects:

This is all just a little surreal. Are constitutional law scholars supposed to ascertain the legal meanings of words used in 1787 without immersing themselves into the historical practices of the time? More importantly, "it is originalism’s reliance on the past that makes it authoritatively attractive to the bench and bar." Imagine if Justice Thomas were to announce that "originalism isn't really about historical accuracy which is why my law clerks and I rely on it."

The reality, of course, is that originalism as practiced by judges, lawyers, and law professors is not and cannot be about gleaning historical meaning because 1) most are not trained to do so, 2) the constitutional text is too vague and its history to contested to justify firm or even persuasive conclusions about most modern day problems, 3) the overlay of hundreds of years of Court decisions has changed the meaning or the application of the imprecise text that leads to real cases; and 4) lawyers are trained as advocates, not impartial recounters of historical meanings or events.

If a case happens to implicate clear history then of course the original meaning of the text should be one factor in judicial consideration of the issues. But these cases are few and far between. Moreover, the history has to be accurate all things considered, not just in the parsing of words. As Patrick Charles has observed, "by accepting the premise that originalists only need to be familiar with a 'subspecialty of history' or the 'investigation of legal meanings,' originalism fails by facilitating mythmaking more so than fact-finding."

Indeed. Originalism is substantially myth, or maybe more accurately, an article of faith.

Unsurprisingly (since my scholarship is mostly about investigating the historical meaning of parts of the Constitution) I lean toward Professor Barnett's view -- though at times I think the inquiry is quite difficult, and that legal scholars can and should learn much from historical accounts.

It's important to see, however, that Professor Segall's attack (and others like it) is not really an attack on originalism but an attack on conventional constitutional interpretation. As non-originalist Professor Mitchell Berman of the University of Pennsylvania has written (in The Challenge of Originalism, p. 250), "Virtually nobody denies that the original meaning of a constitutional provision is always relevant to the interpretive task, and few theories deny that it is frequently a weighty consideration." Or to quote Berkeley Law Professor Amanda Tyler, from her magnificent history of the habeas suspension clause, "Although legal jurists and scholars argue over whether history should be the decisive factor in ascertaining the meaning and application of the Constitution, no one seriously questions that history is deeply relevant to the debate." (Habeas Corpus in Wartime, pp. 8-9). Multiple contemporary controversies, from (to pick one area making recent headlines) the President's duties under the emoluments clause to the President's control over investigation and prosecution to the meaning of "high Crimes and Misdemeanors" in the impeachment clause to the President's power have been and are being debated in large part in terms of the original meaning of the relevant clauses. Countless essays, articles and books have been written regarding the historical meaning of constitutional clauses or of the Constitution more broadly -- not just by originalists but by people from all parts of the political spectrum, by people representing a wide range of interpretive theories, and by people who are simply interested in the historical answers.

What distinguishes originalists from conventional legal scholars is not that they think the Constitution's original meaning can be usefully investigated by legal scholars, advocates and judges. It is that they think the Constitution's original meaning, if satisfactorily identified, should be decisive (or at least, decisive absent directly contrary precedent) in modern adjudication. Professors Tyler and Berman both make this point; as Professor Berman writes (p. 250): "What makes originalism so controversial is precisely the position it takes on what I have called in other work the dimension of interpretive strength. Non-originalists do not deny that the original meaning constitutes a reason, possibly even a weighty reason, in favor of a given contemporary interpretation; they only deny the originalist contention that original meaning (or the like) is a conclusive or exclusive reason to a adopt a particular interpretation."

In sum, Professor Segall's objection is property directed not at originalism but at the wider legal culture of viewing the Constitution at least in part through a historical lens.

[Judge Kavanaugh, in response to a question by Senator Lee]: Now, it's very careful when you talk about originalism to understand that people are hearing different things sometimes. So, Justice Kagan, at her confirmation hearing, said we're all originalists now, which was her comment. By that, she meant the precise text of the Constitution matters, and, by that, the original public meaning—of course, informed by history and tradition and precedent. Those matter, as well. There's a different conception that some people used to have of originalism, which was original intent. In other words, what did some people subjectively intend the text to mean, and that has fallen out of the analysis because, for example, let's just take the 14th Amendment's equal protection clause. It says right in the text "equal protection" – equal means equal.

As the Supreme Court said in Strauder, what is that but the law shall be the same for the black and the white – that's Brownv. Board, which focuses on the text. But there were some racist members of Congress who didn't think it should apply in that way to certain aspects of public life. But if you're paying attention to the text, you don't take account of those subjective intentions, nor is it proper as a general proposition to take account of the subjective intentions. They could be evidence in certain cases—the First Amendment, for example—of the meaning of the words.

[…] You don't follow the subjective intention. So, original public meaning originalism—what I have referred to as constitutional textualism, and what Senator Cruz referred to as constitutionalism—I think those are all referring to the same things, which is the words of the Constitution matter. Of course, as I've said repeatedly, you also look at the history. You look at the tradition. Federalist 37 tells us to look at the liquidation of the meaning by historical practice over time. And then you look at precedent, which is woven into Article III, as I said, in Federalist 78.

Professor Barnett comments: "This statement indicates that Kavanaugh is well aware of the modern approach to originalism that has been developed over the past 20 years: Original Public Meaning Originalism, which he was at pains to distinguish from original framers intent originalism."

[I]f you look at the Heller case—and I'm talking about the DC v. Heller by the US Supreme Court—it wasn't a balancing case. You made that point clear at the court of appeal level. It was a text, history and tradition case. And Justice Scalia wrote the majority opinion. Justice Stevens dissented, and they both took an originalist approach. And I went back and looked. Scalia, this is what he relied on: founding era dictionaries, founding era treatises, he looked at English laws, American colonial laws, British and American historical documents, colonial era state constitutions – he looked at post-enactment commentary on the Second Amendment. And Justice Stevens, also using an originalist approach, looked at the same documents and then he added, he relied on linguistic professors, an 18th century treatise on synonymous words, and a different edition of the colonial era dictionary that Justice Scalia used. Pretty impressive. Here's my question: Doesn't the originalist approach just require a judge to be an historian? And an untrained historian at that? Wouldn't we be better off hiring a trained historian to go back and look at all of this?

Kavanaugh:

Well, the Heller case was one of the rare cases where the Supreme Court was deciding the meaning of a constitutional provision without the benefit of much, if any, relevant precedent. On most of the constitutional provisions, there's been a body of cases over time interpreting the provision, and you don't have to do the kind of excavation that Justice Scalia and Justice Stevens did in that case because it's been done before. The reason, I think, why the Second Amendment posed a challenge in that case, in terms of figuring it out, is the prefatory clause in the Second Amendment, which the question was: Did that define the scope of the right indicated afterwards – the right of the people to keep and bear arms shall not be infringed? Or did the prefatory clause merely state a purpose for which the right was ratified, and, therefore, you read the right as written: the right to keep and bear arms shall not be infringed. To figure out what the prefatory clause meant, you had to figure out, as a general proposition, how legal documents at the time used prefatory clauses, and what the purposes of those were, and that required a lot of historical excavation by the two justices who had the competing positions.

Professor Barnett comments:

Unlike the Democratic senators, Senator Kennedy was able to marshal somewhat of a critique of Judge Kavanaugh's originalism. If Kennedy, a supporter of the nominee can manage this, one would think that Democratic Senators who object to Kavanaugh's originalism could do the same. But, for whatever reason, they did not even try. Unfortunately, Kavanaugh did not directly respond to Kennedy's challenge of how judges can be historians, asserting instead the rarity with which they may have to do so given the existence of precedent. [

Professor Barnett continues with his own responses whihc seem basically right to me.

What it meant to “deprive any person of life, liberty, or property without due process of law” was very well-known to the men who proposed the Fourteenth Amendment: to take away life, liberty, or property without traditional judicial proceedings, except where public safety required it. Congressmen made this very clear, and at great length—but in 1862, rather than 1866.

Download it while it's still got the edgy "under review" watermark--and anyone in the DC area, please stop by on Friday to hassle me about it! Those paying close attention to the Timbs v. Indiana excessive-fines incorporation case will be particularly interested in page 46 footnote 248.

Immigration has become one of the most controversial legal and policy issues on the national agenda, especially since Donald Trump won the presidency on a highly restrictionist platform and began to implement his anti-immigration agenda, seeking to drastically reduce both legal and illegal migration.

Legal debates over immigration have also flourished, such as the recent litigation over Trump’s travel ban order, which the Supreme Court narrowly upheld against claims that it was the result of unconstitutional discrimination on the basis of religion. But few have even considered the possibility that the federal government lacks a general power to restrict immigration to begin with. If such power is absent, many federal immigration restrictions are unconstitutional regardless of whether they might violate individual rights.

And absent it is. If you peruse the list of federal powers in Articles I and II of the Constitution, a general power to restrict immigration is notable by its absence. It just simply is not there. That is not because the Framers only included a small number of very important powers and then left the rest to implication. To the contrary, Article I contains a long and detailed list of congressional powers, including comparatively minor ones, such as the authority to establish “post roads” and “fix the Standards of Weights and Measures.” If the Framers had wanted to give the federal government so massively important a power as the authority to ban immigration, one would think they would have clearly said so.

Legal theorists have developed a vast cottage industry of arguments claiming that the power over immigration can be implied from other authorities given the federal government, or that it is somehow present without being enumerated at all. But these efforts are ultimately unavailing.

The text and the original meaning of the Constitution undercut the notion that the federal government has general authority to restrict immigration, in the sense of having the power to forbid movement to the United States simply on the basis that a would-be immigrant was born abroad and is not a U.S. citizen. The doctrine that Congress has broad “plenary” power over immigration is long established and – today – rarely questioned. But it is actually an emperor walking around without clothes, or at least far more scantily clad than most assume.